Russell v. Barry
| Decision Date | 22 June 1874 |
| Citation | 115 Mass. 300 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Albert Russell & another v. Michael M. Barry |
Suffolk. Contract by the members of the firm of A. Russell & Co. to recover the price of lumber furnished on the following order, signed by the defendant: The answer denied that the lumber was furnished on the order, that the house had been completed by McDonald or by any one else; and alleged that the lumber was not to be paid for by the defendant unless said house was completed by McDonald according to his contract.
The defendant also filed a note of the plaintiffs in set-off which was admitted by the plaintiffs. At the trial in the Superior Court before Lord, J., the jury found a verdict for the plaintiffs, and the case was reported to this court substantially as follows:
The plaintiffs' evidence tended to show that the order was signed by the defendant, and that the plaintiffs furnished the lumber to the amount of the order, and that it went to the defendant's house, and that the house was completed before bringing the action. On cross-examination the plaintiff, Russell, admitted that at the time the order was signed he read the contract between McDonald and the defendant for building the house. The contract was then put into the case. It provided among other things that the house was to be finished before December 1, 1871, and that the work was to be done in a workmanlike manner.
The defendant, in his opening, offered to prove that at the time the order was signed by him, the plaintiffs agreed to finish the house according to the contract between him and McDonald if the latter should fail to do so; that before January 2 1872, McDonald ceased working on the house, leaving it unfinished; that the plaintiff, Russell, on January 2, 1872 requested the defendant to loan him on said order three hundred dollars, saying they had then furnished five hundred dollars' worth of lumber for the house, but the defendant declined to pay anything on the order. That Russell then said they must have some money to pay a note coming due that day at the bank, and requested the defendant to lend the plaintiffs three hundred and fifty dollars for thirty days on their note, promising that if the defendant would do so, he would immediately see McDonald and get him to complete the house, and if he would not, then that the plaintiffs would themselves complete it in thirty days, and if neither they nor McDonald should finish it in thirty days, then the plaintiffs would return the order to the defendant and also pay their said note; that on these conditions and promise the defendant loaned to the plaintiffs three hundred and fifty dollars on their note, but that neither McDonald nor the plaintiffs did any more work on the house, and at the expiration of thirty days the defendant demanded payment of the note and a return of the order, but the plaintiffs refused to do either; that the house remained unfinished for two or three months afterwards, when the defendant laid a part of the floors, finished the stairways and painted the house inside and out one coat, and did other work, and that then the house was not completed according to said contract.
The presiding judge ruled that inasmuch as it is conceded that the house was substantially finished, although not done in the workmanlike manner which the contract between the parties may have called for, the rights of the parties would not be affected by any of the proffered evidence, and that the plaintiffs were entitled to recover the difference between the amount of the order and the note, and the case is reported for the determination of the Supreme Judicial Court. Judgment to be entered on the verdict, if the ruling was right, otherwise a new trial to be ordered.
New trial ordered.
C. W Turner, for the plaintiffs. The evidence offered in regard to a subsequent agreement of the plaintiffs to finish the house if McDonald did not, or to return the order, tended to show an agreement to answer for McDonald's default, and was inadmissible because not in writing. Curtis v Brown, 5 Cush. 488. This evidence was also incompetent because it enlarged the note given by the plaintiffs at the same time, on the same consideration and declared on in set-off. Howe v. Walker, 4 Gray 318. The evidence if admissible, did not establish a defence to the action. It was not such an agreement as could be pleaded in release, because it was conditional and embraced other matters, and the damages for a...
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J. E. Smith & Co., Inc. v. W. M. Hurlburt Co.
...immaterial who completed it. If the defendant wished to limit his liability, he should have done so when he accepted the order." Russell v. Barry, 115 Mass. 300; Cook Wolfendale, 105 Mass. 401; 8 C.J. 328, note 53; Beard v. Boylan, 59 Conn. 187, 22 A. 152. Some question is made because the ......
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Stoughton Lumber Co. v. Ogren
...254 Mass. 218, 150 N. E. 160;Dolben v. Kaufman (Mass.) 170 N. E. 400;Rothenberg v. Newton Mortgage Corp. (Mass.) 173 N. E. 433. Russell v. Barry, 115 Mass. 300, relied on by the plaintiff, is not applicable. There the acceptance of the order was not conditional on the completion of the hous......
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Proctor v. Hartigan
...and was inadmissible. Lee v. Howard Fire Ins. Co., 3 Gray, 583; Shaw v. Gardner, 12 Gray, 488; Ridgway v. Bowman, 7 Cush. 268; Russell v. Barry, 115 Mass. 303; Keller v. Webb, 126 Mass. The evidence relative to what took place between Lafield and the plaintiff Proctor, previous to the signi......
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Rothenberg v. Newton Mortgage Corp.
...O'Connell v. Root, 254 Mass. 218, 150 N. E. 160. No circumstances were established by the evidence which make the decisions in Russell v. Barry, 115 Mass. 300, and Swartzman v. Babcock, 218 Mass. 334, 105 N. E. 1022, cited by the plaintiff, applicable here. No evidence required the trial ju......